It is fair to say that one of the hottest issues for employers over the last couple of years has been the debate raging in the courts over employment status, particularly in the field of agency staff. The question of a non-employed worker’s status in the organisation is not limited to agency staff however. In Fitton v City of Edinburgh Council (EAT 5 June 2008) the employment tribunal and the employment appeal tribunal (EAT) were asked to consider the employment status of a secondee.

Dr Fitton had been seconded to a partner organisation, Edinburgh Lifelong Partnership (ELLP) for an initial period of a year. The secondment was subsequently made “open ended” with the expectation that she would continue to work for ELLP until retirement.

The tribunal’s judgment, with which the EAT agreed, was that the arrangements clearly showed that a contract had been entered into between Dr Fitton and ELLP and that there was mutuality of obligation. The next question was whether that contract was a contract of employment.

The tribunal looked at the overall circumstances and found that from the date the secondment was made open-ended Dr Fitton neither expected nor intended to return to work with her substantive employer. She had no substantive job title with them, she was under no obligation to them, she was not controlled by them, she performed no work for them and she sought no help or guidance from them regarding any aspect of her daily work.

In fact, she worked in the ELLP premises. She agreed her leave with ELLP, was line managed by ELLP, raised concerns with the ELLP Vice Chair and the ELLP Steering Group and although her salary was paid through her substantive employer’s payroll, it was on the basis that the cost of it was charged back to ELLP by reducing the amount of grant that would otherwise have been paid to ELLP by them. Further, the level of Dr Fitton’s salary and her conditions of service were a matter for ELLP.

In those circumstances the EAT said the employment tribunal had been correct to conclude that Dr Fitton became an employee of ELLP at the point her secondment became open ended.

This case is another example of the dangers inherent in entering into long-term relationships with workers whom you have no wish to employ, be they self-employed, agency staff or secondees.

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